Parent-Child Privilege? Not So Much

By William Peacock, Esq. on June 20, 2014 12:01 PM

Attorney-client? Sure.

Doctor-patient? No problem.

Parent-child? Nice try.

Police respond to a domestic violence call at the Doe household, where they find a pretty sizeable collection of firearms and marijuana plants. The government suspects that Poppa Doe is the owner of these objects, but since others have traipsed through the premises, they need someone to testify. Momma Doe clams up, claiming privilege, as does college-aged Doe Jr. -- and the district court somehow agrees.

The opinion recites three instances in which a parent-child privilege has been recognized, all by federal district courts:

In re Agosto (1983) - a minor testifying against his father, explicitly repudiated by the Ninth Circuit in In re Grand Jury Proceedings (Alba).

In re Grand Jury Proceedings (Greenberg) (1982) -- a First Amendment/religion-based privilege between a Jewish mother and her daughter.

In re Grand Jury Proceedings, Unemancipated Minor (1996) -- something about penumbras, children, and privacy means a right should exist, but it wasn't even applied in this case (in other words: district court dicta).

As for federal circuit courts of appeal: nada. Every single one that has considered a parent-child privilege has rejected it, including the Fourth Circuit on multiple occasions. The panel cites two prior cases from this circuit, Jones and Dunford, each of which declined to recognize such a privilege in those cases, but left the door open for a more extreme case, such as a dependent minor child.

As a college student, Doe, Jr. doesn't even the hypothetical opening.

Not So Strong Showing

Judge Stephanie Thacker noted that while courts have the power to recognize new privileges, they should be extremely reluctant to do so, and only "after careful consideration in the face of a strong showing of need for the privilege." In fact, in a footnote, she basically hints that the unofficial policy is to leave it to the legislature to make such policy judgments.

Here, there was no strong showing. Doe, Jr. is an adult college student, who testified that his father likely wouldn't hold it against him if he were compelled to testify, and probably wouldn't cut him off financially. The court also addressed the wider considerations:

"Moreover, courts have acknowledged time and again the fundamental principle that the public has the right to 'every man's evidence,' [...] and in this case, there is no good reason to thwart that right. Doe Jr. was the only individual living in the Doe household at the time of the 911 call who was available to testify, save the two minor Doe children. Thus, the 'sought after testimony is of demonstrated relevancy to the grand jury's investigation.[...]'"

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